situation should be reversed.

There is simply no reason why

most agencies cannot train low level personnel in the

appropriate application of the exemptions and authorize them to release non-exempt material. As the Subcommittee report reasoned,

[i]n short, the greater the number of agency employees who have authority to grant an initial information request, and the fewer the number who have authority to deny a request, the less processing delay there is likely to be. Such organizational structures are also much more in keeping with the

maximum disclosure philosophy of the FOIA.

Agency Implementation of the 1974 Amendments to the Freedom of Information Act, Report by the Staff of the Subcommittee on Administrative Practice and Procedure, Senate Comm. on Judiciary, 95th Cong., 2d Sess. 70 (1980).

Given the realities of how the present time limits actually work, these limits should be maintained, not extended. Requesters must be able to seek judicial review of an agency's withholding without first exhausting a year's worth of administrative remedies. Indeed, we would propose that the FOIA be amended to provide that a requester who can demonstrate both a compelling need for immediate access to records and that the agency will not process the request within the present time limits may seek judicial review before the expiration of the time limits. This would enable requesters with an urgent need to obtain information, such as journalists meeting a deadline, to seek immediate judicial scrutiny of an agency's withholding. Where the requester

could not make the necessary showing of compelling need and agency delay, the court could dismiss the action for want of jurisdiction pending exhaustion of administrative remedies.

B. Administrative Costs

Sections 8 and 9 of S. 587 are apparently aimed at easing the administrative costs associated with the FOIA.

Section 8 would relieve the agency of having to produce information already available in another public forum, limit a person to one request per agency per year on any general subject, and allow an agency to refer a requester to the agency where a document originated if the document was submitted to the recipient agency on a non-confidential basis. Section 9 would amend the fee provision of the Act to provide that each requester shall be charged a fixed fee of $10 plus duplication costs and that fees will be waived only upon a showing of "financial hardship."

We have no objection to making it clear that in the interests of efficiency, an agency may refer a requester to the originating agency for access to a particular document, as long as any such provision also makes it clear that the referral will not delay the process or unduly burden the requester. The McGehee case mentioned earlier is illustrative of this concern. After two and a half years and a court directive, the CIA finally processed Mr. McGehee's request, only to inform him that with respect to one third of the documents in the CIA's files, he would have to look

to the State Department and FBI where the documents originated. However, since Mr. McGehee had not dealt with either of those agencies, he was told he had not exhausted his administrative remedies with them, and he had not joined them as defendants in his pending lawsuit. In our view it is unconscionable for an agency to delay processing a request far beyond the time limits and then to claim that the requester must start over exhausting administrative remedies with another agency. Indeed, the Act already provides an agency additional time for responding to a request where needed to consult with another agency having a substantial interest in the determination of the request. (B)(iii).

552(a)(6)

we

As to the other provisions of sections 8 and 9, believe that not only would they needlessly restrict the public's right of access under the FOIA, but they simply do

not go to the heart of the concern about costs.

The problem

is not the result of numerous requests by a single requester. Nor is it caused by the requirement that fees be waived under the current standard where the information will primarily benefit the general public. Indeed, a recent study for the Administative Conference of the United States concluded that only one to two percent of all FOIA rquests involve requests for fee waivers. Rather, the problem with costs stems from the agencies' inability to recoup the full costs of processing requests and to channel collected fees into their own operating budgets. The Act presently provides that a requester can only be charged fees for search and copying. However, as Jonathan Rose, Assistant Attorney General, recently testified in the House, by far that most significant agency cost is represented by the personnel time devoted to reviewing requested material to determine whether an exemption applies and segregating exempt from non-exempt material. Statement of Jonathan C. Rose, Assistant Attorney General, Office of Legal Policy Before the Subcommittee on Government Information and Individual Rights, House Committee on Government Operations at 18 (July 15, 1981). We agree with Mr. Rose that agencies should be authorized to charge fees for this expense where the requester is seeking information for a private commercial or financial interest. Id.

"Public Interest Fee Waivers Under the Freedom of Information Act," A Report to the Administrative Conference of the United States, by John E. Bonine (November 7, 1980).

We also strongly recommend that the monies generated through the collection of processing fees be put back into the operating budget of the particular agency rather than placed in the funds of the general Treasury which is the current practice. Since it is a generally acknowledged fact that overwhelmingly the greatest users of the FOIA are corporations, we estimate that more than two-thirds of the annual government exenditures for administering the Act could be recovered this way and reapplied to assist effective use of the law by the public for whom it was intended.

Some additional comments on the subject of costs are in order. We have heard much about how the costs of administering the FOIA are too high and how the burden of complying with the FOIA is deleterious to the public interst because it takes agency time and resources away from more important government activities. We strongly disagree with these

claims. First, we believe there is no more important function of a democratic society than its dedication to an informed citizenry. The benefits of the FOIA have far outweighed its costs. The FOIA has uncovered waste, mismanagement, and abuse of power which threatened the very core of our democratic government. While is would certainly

be a lot less expensive for the taxpayers if we lived under a totalitarian regime where the government told us only what it wanted us to know, such notions are anathema to our principles of freedom and independence. Second, we have not seen any useful statistical analyses of the true costs of administering the Act, including the very real costs of bureaucratic run-around, multiple layers of review, inefficient record-keeping, unnecessary litigation, and an unwillingness to settle attorney fees claims at current

market values.

C.

Law Enforcement and National Security Provisions

The remainder of my testimony will address the various provisions of S. 587 which to a large extent would enable agencies performing law enforcement functions to escape public scrutiny. As a preliminary matter, it must be emphasized that no government agency, regardless of its function, should be placed above accountability to the American public. Indeed, it was the very lack of accountability for so many years on the part of such agencies as the FBI and IRS that allowed the "Watergate" environment of special favors, illegal burglaries, domestic syping, interference with the exercise of First Amendment Rights, destruction of records, and other abuses of power to fester. As these abuses have come to light over the past years, largely through the FOIA, the media, and congressional oversight, we have produced a better government.

It is not enough to say that these abuses are now behind us. That is not the issue. Whether they are or not remains to be seen. And if the abuses are behind us, we have only openness in government to thank. We must maintain that openness to assure that past abuses do not recur and that new ones can be checked in time. While concededly such openness may make the job of law enforcement more difficult in this country, that is a necessary consequence of a democratic society which places the right of the individual above the rights of society as a whole. A far greater danger to our way of life than inefficient law enforcement is a government that operates in secrecy.

Congress weighed all of these concerns in 1974

when it amended Exemption 7, dealing with law enforcement records. It rejected a blanket exemption for any document placed in a file designated "investigatory" by an agency, in